Constitutional Law - Assignment Example

Question One Martin’s rights in respect of personal injuries under the provisions of European Community Law are inalienable. The United Kingdom, byvirtue of The European Community Act 1972 indorsed European Law. Section 2 of the European Community Act reads as follows:- ‘All such rights, powers, liabilities, obligations and restrictions from time to time created or arising under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression enforceable Community right and similar expressions shall be read as referring to one to which this subsection applies.’1 The impact of Section 2(1) of The European Community Act 1972 on Martin’s situation is that any rights conferred upon him for recovery of damages will not be compromised by a conflict between U.K. law and the laws of the European Community. There are essentially three applicable systems of law relevant to determining Martin’s’s rights in the context of the directive and regulation issued by the European Union. The three systems are contained in the European Union’s Treaties which are referred to as primary legislation, Directives and Regualtions which are referred to as secondary legislation and Decisions which are handed down in the European Court of Justice.2 For present purposes this discussion will centre on Directives and Regulations as well as the relevant case law. The reason for this is that Martin’s case involves the interpretation and application of secondary legislation as his rights are directly connected to the validity of a directive and a regulation issued by the Council of the European Union. There is only a minor distinction between regulations and directives. While directives require enactment by the legislators of individual Member States, regulations are not burdened by any such requirement. All the same both are binding on all members and are ‘directly applicable.3 If there is a conflict between a European regulation and local legislation the regulation will prevail. It appears that the regulation issued with regards to occupiers of commercial premises and their right to compensation for damages sustained as a result of mercury contamination does not cause any difficulties for Martin. The regulation permits Martin to refer to English law for quantification of damages. In Publico Ministero v Ratti [1979] ECR it was held that by virtue of Article 189 of the Treaty of Rome, regulations are capable of having the force of law in each Member State if they contain language indicating that the regulation is ‘unconditional and sufficiently precise.’4 The European Court held that Regulations and Directives are unconditional provided they were not subject to some measure of ‘judicial control.’5 In this case, Van Duyn v Home Office, the European Court held that a provision which related to the freedom of movement in respect of workers was not effective since it was ‘subject to limitations justified on grounds of public policy, public security, or public health’.6 The regulation in Martin’s case imposes strict liability and is therefore not subject to ‘judicial control’. When directives are issued the European Union directs the Member States requiring that the directive is implemented within a certain time period. There is sufficient authority reflecting that whether or not the directive is implemented by a Member State within the timeframe set by the European Community or not, the directive will have the force of law. Article 249 (formerly Article 189) of the Treaty of Rome 1957 makes provision for directives to be binding on ‘each state to which it is addressed.’7 Although the United Kingdom is at liberty to use its own discretion as to how to implement the directive issued by the European Union on strict liability in respect of mercury contamination, it has an existing duty under the current law to implement the directive. That fact that the directive duplicates existing legislation within the United Kingdom does not make the directive by the European Union any less applicable. In the event a Community citizen seeks damages sustained in the United Kingdom through the European Court of Justice, the directive will have impact not the UK provision. The fact that the United Kingdom had its own provisions is of no consequence. It had a duty to construe preexisting provisions in such a way as to conform with the new directive issued by the European Community. Sir Gordon Slynn maintained that ‘it is thus plain that where legislation is adopted to implement a directive, or consequent upon a Treaty obligation, national courts should seek so far as possible to construe the former in such a way as to comply with the latter.’8 In fact it was held in Becker v Finanzamt Münster-Innenstadt (1982) ECR 53 at 70-71)9 that particularly in cases in which the Community authorities have, by means of a directive, placed Member States under-a duty to adopt a certain course of action, the effectiveness of such a measure would be diminished if persons were prevented from relying upon it in proceedings before a court and national courts were prevented from taking it into consideration as an element of Community law. Directives are single minded of purpose as they place legal obligations on the Member State and while they are not applicable to suits between individuals, an individual may pursue the State or any of its agents if a Member States fails to comply with the directive. By virtue of the ruling in Francovich and Bonifaci v Italy, Martin is at liberty to pursue an action in damages against the United Kingdom for any loss sustained as a result of the government’s failure to implement the mercury contamination directive.10 The only difficulty for Martin is that the government is not a proper party. Acme Chemicals are and by virtue of the ‘direct effect’ principle, individuals cannot sue individuals for damages in respect of a breach of a directive that the government failed to implement. The European Court in Van Gend en Loos v Nederlandse der Belastingen, developed the principle of ‘direct effect’ under which individuals such as Martin may pursue the United Kingdom for consequential loss. Maintaining that some provisions have direct application in Member States the European Courts held that these provisions create ‘individual rights which national courts must protect’.11 At the same time an individual may not sue another individual in similar circumstances. The term individual is used to separate private citizens, including privately owned companies from Government bodies. Directives are not enforceable against individuals if they are not implemented by the law of the applicable State this is not so in cases of ‘direct effect’ against the actual Member State. The ruling in Emmot v Minister for Social Welfare and the AG [1991] explains the reason for this proviso. Individuals are not expected to know the law prior to its implementation as it is not law. Government and government bodies are a different matter entirely. The fact is, the Government has duty to implement the directive in the first place and it would be unconscionable to permit the Member State to benefit from its failure to do so.12 In any event, Martin will not be unfairly prejudiced by the United Kingdom’s failure to implement the directive since the UK law has an identical provision. Martin may sue Chemical Acme under the provisions of the UK legislation. Even so, if he sues under the provisions of the European regulation in respect of the mercury contamination provisions for damages, the relevant UK law will apply for the quantification of damages. Bibliography Becker v Finanzamt Münster-Innenstadt (1982) ECR 53 at 70-71 European Community Act 1972 European Union Law. http://www.leeds.ac.uk/law/hamlyn/european.htm Viewed December 4, 2006, 2006 Emmot v Minister for Social Welfare and the AG [1991] ECR 1000 Foster, Nigel. Blackstone’s EC Legislation. (2006) Oxford University Press. Francovich and Bonifaci v Italy, [1991] ECR I-5357 Marshall v Southampton and South West Hampshire Area Health Authority [1986] IRLR 140 Publico Ministero v Ratti [1979] ECR 1629 Treaty of Rome 1957 Article 249 Van Duyn v Home Office [1974] ECR 1337 Question Two Whether addressed to Member States or individuals typically a business enterprise, decisions by the Court of Justice are binding on the parties to whom they are addressed. It does not require ratification by the Member State to which it is addressed. These decisions are binding unless and until they are set aside.13 Section 3(1) of the European Communities Act 1972 provides that ‘For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any Community instrument, shall be treated as a question of law (and, if not referred to the European court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court).’14 If Mediflair wishes to challenge the Commission decision with regards to reducing the number of hours doctors may work within its private health facilities it can make an application to the European Court of Justice by way of reference. There is no evidence that the Commission’s decision was founded on an actual investigation of the premises at Mediflair and for this reason appears to be fundamentally flawed and contrary to the spirit and intent of the European Union’s general policy of promoting a single and free market among its member states. In France v Commission Case C-393/01 a similar set of circumstance gave rise to a reference to the European Court of Justice on the part of France. In 1998, the European Commission place a ban on Portugal prohibiting the export of bovine animals, beef and veal as well as products from these animals as a result of an outbreak of mad cow disease. The ban was in respect of export to Member States and other countries.15 Subsequently, in April 2001, the Commission lifted the ban subject to the Portugal meeting certain conditions and applied generally to animals born after a certain date. A further decision was made by the Commission in July of 2001 lifting the ban altogether. France did not agree with the Commission’s second decision and challenged it before the European Court of Justice on the grounds that the Commission was not in a position to ascertain that the conditions were met permitting the ban to be lifted.16 The court ruled in favor of France on the grounds that ‘from the principle laid down in the EC Treaty that a high level of human health protection must be ensured in the definition and implementation of all Community policies and activities.’17 As a result of these considerations the court determined that the inspections criteria should have included specific checks in respect of the disease as well of general inspections ‘whose purpose is to verify the implementation of official controls, to examine the development of the incidence of the disease, to verify the enforcement of national measures and to conduct a risk assessment’18 The court went on to point out that the purpose of requiring vigorous inspections was twofold. It is ‘not solely to confirm the adoption of national provisions but also to verify their application.’19 With this ruling in mind, Marifield as a medical health provider falls within similar considerations attributable to ‘human health protection.’ Any decision made in respect of the provision of that care must necessarily contain specific information reflecting a rigorous inspection justifying the decision. In another case where a decision of the Commission was challenged relating to a refusal to release certain documents, the European Court of Justice held that in all decisions made the Commission reasons should be given for that decision. The fourth Chamber of the Court of First Instance fount that ‘it is settled case-law that the duty to give reasons for individual decisions has the dual purpose of, first, allowing interested parties to know the reasons justifying the measure so as to enable them to protect their rights and, secondly, to enable the Community judicature to exercise its power to review the legality of the decision.’20 It appears from the facts stated that the decision rendered in respect of reducing the hours of doctors working at Mediflair did not provide reasons for the decision other than directing the UK government to address the situation of the long hours worked by private sector employees in the UK and referred to Mediflair. In the spirit of the ruling contained of JTs Corporation Ltd v Commission of the European Communities European Court (cited above), Mediflair can apply to have the decision annulled on the grounds that it does not meet the criteria set forth in respect of providing reasons for that decision. Moreover, it was determined by the European Court of Justice that the criteria for assessing whether or not a decision contained a satisfactory statement of reasons, the wording of the reason and the context of the decision are matters of importance. These considerations must be weighed together with legal rules applicable to the matter in question.21 Based on this decision it is obvious that Mediflair is unfairly prejudiced in their ability and right to challenge the decision and can apply to the European Court of Justice to have the decision set aside or annulled on the grounds that it offends the general requirements as set out above with regards to providing a well informed reasoning for the decision. The underlying principle contained in case law is that any decision ultimately made by the European Commission must be capable of objective justification. In order to determine the objectivity the decision has to not only be concise and based on a combination of sound investigations as well and supported by the reasons for the decisions, it must be founded on the principles of law contained in the Treaties governing the Member States. If the decision functions to extend the substantive law within the relevant treaty it will be annulled by the European Court of Justice. By virtue of the ruling in Grant v South-West Trains Ltd. the European Court of Justice maintained that this principle requires that the Commission clearly state the provision under the European Treaties that it is relying on in support of its decision. It was held that ‘any provision of Community law, is to be determined only by having regard to its wording and purpose, its place in the scheme of the Treaty and its legal context.’22 In Mediflair’s case, the decision does not refer to any provisions of the governing Treaties but merely expresses a direction to the United Kingdom to address the situation within the United Kingdom in respect of the long hours in which employees work with the private sector. It is not state that this practice is contrary to or offends any of the provisions of the European Treaties. On the facts state, Mediflair has a strong case for making a successful application to the European Court of Justice for the purpose of have the decision set aside. For the reasons discussed above and in reliance on the authorities cited, the ruling is deficient for want of stating a reason, as well as setting out the details of an investigation of the relevant premises that gave rise to the decision that directly affects Mediflair. Since the decision is lacking in all of these material respects it is not justified and cannot be upheld. Bibliography Cassidy, Bryan. EURIM GUIDE TO DECISION MAKING IN THE EUROPEAN UNION. http://www.eurim.org/cassidy.htm#EUlaw Viewed December 5, 2006 Commission v Council [1996] ECR I-881 European Community Act 1972 France v Commission Case C-393/01 http://curia.europa.eu/en/actu/communiques/cp03/aff/cp0347en.htm Viewed December 5, 2006 Grant v South-West Trains Ltd. Case C-249/96 http://www.pfc.org.uk/node/386 Viewed December 5, 2006 JTs Corporation Ltd v Commission of the European Communities European Court reports 2000 Page II-3269 http://www.poptel.org.uk/statewatch/docbin/caselaw/cfit123-99.html Viewed December 5, 2006 Read More